And, as Daily Mail writers and blustering bloggers know, the chief cause of the compensation culture is NuLabour ‘Elf ‘n’ Safety legislation.
But here’s a wee brain teaser for you. Without looking, can you guess how many Health and Safety Acts have been passed since 1997? Wrong, try again!
The answer is one. Yes, that’s right, just one. The Health and Safety (Offences) Act 2008. All it does is increase the penalties for offences that already existed. True, there have been some statutory instruments too but these apply mostly to technical issues in specific industries.
In fact, Health and Safety legislation has almost nothing to do with the increased paranoia about health and safety from companies and public bodies. This presents a problem for the government. It would be very convenient if legislation was behind the so-called health and safety culture. Legislation can easily be repealed. What we are dealing with here, though, is something much deeper. Over the past couple of decades the common law has evolved in parallel with social attitudes to create a litigious culture.
Most compensation claims are based not on health and safety legislation but on the duty of care and the tort of negligence which were established in English common law by a case in 1932. In theory, then, people could have sued councils for tripping over broken paving stones and demanded compensation from schools for injuries to their children back in the 1930s. They didn’t, of course, for a whole raft of reasons. Lack of knowledge of the law, social deference, prohibitively expensive legal advice and, for the most part, an unsympathetic judiciary ensured that few compensation claims were brought.
No-win no-fee lawyers did much to fuel the compensation culture as they came up with ingenious ways to interpret the duty of care and exploit it in the courts. But it would be wrong just to blame the lawyers. Social attitudes have changed too. In the 1970s it would never have occurred to most people to sue schools, local authorities or even hospitals. Over the last few decades, people have become less deferential towards the state and other public bodies while, at the same time, demanding more of them. Judges attitudes have also shifted, in line with public opinion. They are more likely to give a favourable hearing to people bringing cases against public bodies than they were twenty years ago.
That said, while these cases may get a lot of publicity, they rarely result in large payouts. The publicity, though, is enough to crank up the hysteria to a point where health and safety law is deemed to be so restrictive that it can be used as an excuse for almost anything. It’s far easier to blame health and safety laws than to admit that you are just trying to cut costs or that you are too damned lazy to do something.
Here’s an example. My mum’s window cleaner told her that ‘Elf ‘n’ Safety laws meant that he was no longer allowed to climb a ladder. Instead, he would have to clean her windows with a machine on a long pole. This would, of course, cost more as the machine was expensive, even though it didn’t do as good a job. The window cleaner was therefore able to charge more for doing less work and use a machine which enabled him to clean windows much faster, which increased his profits. His customers, getting a worse service, were fobbed off with a story about health and safety laws. Fortunately, my mum found another window cleaner who told her the whole thing was complete rubbish.
This is not an isolated case. Unscrupulous businesses and lazy bureaucrats often use health and safety legislation as an excuse to avoid their obligations and cut costs.
But the use of mythical health and safety legislation as a scapegoat only contributes to the general noise. Insurance companies have got in on the act too, talking up theoretical and, in may cases, highly unlikely litigation liabilities, to scare clients into taking out insurance. Consequently, many companies public bodies have found themselves facing twin assaults from vexatious litigants and insurance companies jacking up premiums. It is hardly surprising that many seek to mitigate their liabilities with excessively risk averse policies. Large organisations then put pressure on the smaller organisations that supply them, demanding risk assessments and astronomical insurance cover just to be allowed to bid for contracts.
David Cameron’s Big Society might even make things worse. Imagine you are the head-teacher in a school that has opted out of local authority control or the trustee of a charity set up to run the local parks. Suddenly you get a letter from your insurance company informing you of your potential liabilities should someone fall over on your premises. No longer able to go to the council legal department for advice, you could be forgiven for playing safe and curtailing the activities of some of your users. Running things locally might seem attractive until you realise that you would have to sort out any legal mess arising from compensation claims. That might put some of the army of volunteers off.
The compensation culture is not the result of legislation, it is the result of an increase in litigation and a massively disproportionate increase in the fear of litigation, built up over the last two decades. It is therefore difficult to see what the government might do to curb it. Is David Cameron suggesting legislation to free public bodies from some of their liabilities? Is he going to tell motorists that they can no longer sue their council for pot-hole damage? Is he going to tell people they can’t sue hospitals? Is he going to tell parents they can no longer sue schools? Good luck with that one Dave.
I’d be interested to hear what the blogging lawyers have to say about this. Is it possible to legislate to curb the compensation culture? Is there anything the government can realistically do to stop it? Darren? Carl? Charon QC? PJH? Anyone??
Answers in the usual place please.